The Presumption of Innocence

The law of evidence may be shortly and simply stated.  Most of it is just the application of logic, fairness, and common sense.  Yet courts and tribunals throughout the land routinely fail to apply it, and our whole justice system suffers accordingly.  It would be as well for those who administer the law to recall the pledge of the king in our sovereign law, Magna Carta, that the king would appoint as judges ‘only such men as know the law of the kingdom and well desire to observe it.’   That law has not been properly observed here – and it is hardly known elsewhere.

Presumptions in our law are routinely discussed as part of the ‘law of evidence’.  One such presumption is that of innocence.  For ‘presume’, the Compact English Oxford Dictionary has ‘suppose that something is probably the case.’  There looks to be a little more involved when the term ‘presumption’ enters our laws.

In his Treatise on the Law of Evidence (Little Brown and Company, 1898, 313-4,321, 576), Thayer was at pains to say that presumptions ‘belong to a much larger topic, that of legal reasoning’.  We are dealing with rules of substantive law, and not just a rule of procedure, but I am not clear how ‘legal reasoning’ differs from other forms of reasoning, given that a ‘presumption itself involves no evidence, and has no probative quality,’ and that anyone who does not see this has ‘wandered into the region of shadows and phantoms’.

Well, whatever else might be said about the presumption of innocence in our law, it means that someone alleging that another has committed a crime has the onus of producing evidence that proves, to the standard of proof required by the law, that the person accused is guilty of the crime alleged.  The law then provides that in an allegation of a crime, the standard of proof is ‘beyond reasonable doubt’ – and judges are expressly forbidden to descant on that formulation. 

In civil cases, the standard is the balance of probabilities – that the finding that is required of an event is that it is more likely than not to have occurred. 

But the law also recognizes that some allegations have serious consequences as to the gravity of the misconduct alleged – such as fraud by a person in an office of public trust – or the effect of an adverse finding on the standing of the person whose conduct is impugned, and that the seriousness of those allegations is such that they should be borne in mind before finding them to have been proved. 

Judges and others – including me for thirty years on various tribunals – have wrestled with the formulation and application of this law.  It is now recognized in statutes on evidence, but it may rest on the simple human reaction that you may want more evidence to hang someone on than to give them a parking ticket.

It has long been customary for parliament to say that a tribunal that does not exercise the judicial power of the state is not bound by ‘the rules of evidence’.  If most of those rules consist of statements of logic or common sense, you can forget that exclusion.  And if a tribunal said that it did not have to apply the presumption of innocence, the result would be Vesuvial.

But what, if any, is the effect of the presumption outside the forensic process?

Take a hypothetical case.  You are entrusted with the care of three children for a week.  You then must go out one night for three hours.  You need a babysitter.  Jill recommends Jack.  But Judy says Jack was committed for trial for offences against a child.  What happened?  The complainant died and the proceedings concluded.   Where does that leave Jack?  He relies on the presumption of innocence. 

It would be absurd to say that you would entrust those in your charge to the care of Jack.  Indeed, if you did, and things went badly, you might well be sued for failing to discharge the obligations arising from the position of trust that you had accepted.

You would have applied a rule of law to an instance where that was inappropriate.  This would be, I think, what Sir Gilbert Ryle called a ‘category-mistake’.  That involves representing the facts of mental life as if they belonged to one logical type or category when they actually belong to another. (The Concept of Mind, Barnes & Noble, 1948, 15.) 

If you have misgivings about that formulation, as I do, you might prefer to say that you have erred by asking yourself the wrong question.  I have those misgivings because I get queasy about shifting events and consequences from one box to another.   That does sound, for want of a better term, presumptuous.  But if someone claims a free kick for holding the ball, you don’t ask whether the ball would have hit the wicket.  That way madness lies.

Asking the wrong question may not just cause you to fail an exam – it may lead to your decision being overturned by the courts.  There is a large body of law dealing with errors of law made by a branch of the executive in discharging its function.  And for an administrative body to ask itself the wrong question is a good way to be seen to have exceeded its powers – or, if you prefer, gone outside its remit.  There is ample authority – for example Craig v South Australia (1995) 184 CLR 163 – holding that if an administrative tribunal falls into an error of law which causes it to ask itself a wrong question, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.

Because the law recognizes at least two standards of proof, the same conduct may lead to different findings depending on the nature of the proceeding.  A man acquitted of murdering his wife may be precluded from taking under her will by a finding by a civil court on the balance of probabilities that he had in fact murdered her.

Ben Roberts-Smith was found to have committed war crimes by findings made on the civil standard.  Those findings were made in a libel action where Roberts-Smith challenged the press to make good their allegations and, after the most expensive litigation we have known, the court found against him.  The common law of defamation puts the onus of proof of a defence of justification on the defendant making that plea, but inviting a court to rule on your conduct in issues of such moment is not a course to be entered into lightly or ill advisedly.  A seasoned trial lawyer might be mordantly moved to comment that the Yiddish expression is chutzpah, and that the English precedent is Oscar Wilde.

The government now proceeds against Roberts-Smith seeking to have him convicted of the same crimes.  For that purpose, the case will have to be proved beyond reasonable doubt to the satisfaction of a jury.  And Roberts-Smith is for that purpose entitled to the presumption of innocence. 

As I read the judgment of the trial judge, the possibility of a decision adverse to Roberts-Smith leading to criminal charges being laid against him was the subject of substantial argument at the trial.  (Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 (1 June 2023) pars. 95-116, esp. 113.)  He knew the risk and he rolled the dice.

But what impact, if any, does the rule of law on the presumption of innocence have outside the criminal prosecution?

Let us say that a question arises whether the conduct of a man is such as to render him unfit to hold any office of public trust or duty.  And let us say that a question arises where there is credible evidence that he has in the past been guilty of fraud to an extent that shows he is unfit to hold such office.  Would the law require the decision maker to be convinced of his guilt of such fraud beyond reasonable doubt? 

I do not think that is the law, and the decision maker would be applying the wrong test, or asking the wrong question, or applying the wrong criteria to this category of issue, if that person did require proof beyond reasonable doubt.  And the case would be a fortiori if a court had made findings of fraud on the standard required in civil proceedings.

The Roberts-Smith case was not an ordinary or simple case.  The findings were made by a superior court after the most painstaking care, and confirmed on appeal, before the High Court refused leave to appeal. 

I have not seen a reasoned critique of any of the relevant findings.  It is a fair bet that you could count on the fingers of one hand those who have read the 2618 numbered paragraphs of the decision of the trial judges, much less the decision on appeal. 

As it appears to me, the press called the bluff of Roberts-Smith, and he lost.  Those supporting him and funding him – his pay masters and choir leaders – will have their own agenda, but Australians at large, apart of course from the jurors, may proceed on the footing that Roberts-Smith has been found responsible for war crimes.  Whether they choose to use the terms ‘guilty’, is, I suppose, a matter of taste in the sphere in which we live.

May I offer another case of a curious invocation of the presumption of innocence? 

Two members of the U S Supreme Court are the subjects of well publicized and publicly examined accusations of sexual assault.  If they were to be prosecuted, they would of course have the benefit of the presumption. 

But we are talking of a space where appearances matter.  Justice must not only do done, but it must be seen to be done.  For that purpose, is it appropriate for people appointed for life to the highest court in the land to be subject to unresolved allegations of serious crimes – and be left to rely on something invented by the lawyers called a presumption? 

Such a quandary would be inconceivable here or in England.  And I have no doubt that many Americans are troubled by it.

So, if lawyers have trouble with this rule of law about the presumption of innocence, it may be as well for others to leave it alone, and leave the lawyers to wrestle with their own problems – and their consciences.

May I go back to the dictionary definition of ‘presume’ – ‘suppose that something is probably the case’?  That language befits the adversarial approach of the common law.  My favourite citation about presumptions was stated by Wigmore on Evidence (cited in Carkeek v Tate-Jones [1971] VR 84):

Presumptions may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts …. presumptions have no place in the presence of the actual facts disclosed to the jury….

Australia practises a form of democracy it inherited from England.  The U S developed its own radically different model.  Europe is different again – you rarely see the two-party system there.  But we can see some common themes across the board.

All these nations except the U S have a version of the Welfare State.  People expect as a matter of right that the State will look after them.  For that purpose, they have to pay tax.  But democratically elected law makers may be too timid either to reduce benefits or to increase taxes.  They are driven to borrow rather than make hard long-term decisions.  As one European law maker said, ‘We all know the problem, but we all want to be re-elected.’ 

That risk of timidity looks to me to be inherent in any democracy.  The result is that England now asks whether it can afford to defend itself, and France is about to implode because of faults inherent in its polity at least since 1789.

There is I think another problem in the two-party system.  In England and Australia, many people now wonder what, if any, is the difference between the major parties.  We used to draw a kind of line between people who broadly trust government and are optimistic about what it can do, and those who don’t trust or like government, and are pessimistic about what it can do.  But that says very little now, especially in light of the quandary referred to above.

The result is that the system is not working in the manner for which it was designed, and the disillusioned electors turn to people called ‘populists,’ who are unashamedly repellent, morally and intellectually.

The distinction between parties in the U S has always seemed to me to be more tribal than political.  The Republicans are happy to play the system, and put a spoke in the wheel of government, and the Democrats rarely miss an opportunity to miss an opportunity.  On two occasions now, they have put up a candidate who got walked over by the worst president in their history. 

And people in that party, who should know better, are content with the help of Rupert Murdoch to brand the Democrats as Satanic, while refusing to check Trump for fear of losing their personal status.  The moral and political collapse is just shocking.

This collapse of the U S, as it seems to me, comes in large part from the way they chose to distinguish themselves from the United Kingdom in 1776.  And that in turn came from their putting theory or logic or ideology over experience, history or common sense. 

It is precisely that distinction which distinguishes the common law and the Westminster system of the English from the Roman Law system of Europe – the empirical or the rationalist.  We prefer common sense to elegantia iuris – the elegance of the law or code.  And we have inherited from the English an Anglo-Saxon aversion to ideology.

The distinction was observed by our greatest jurist, Sir Owen Dixon, in addresses he gave nearly 100 years ago.  A central premise was that the English constitution forms part of the common law.

The fundamental conceptions which a legal system embodies or expresses are seldom grasped or understood in their entirety at the time when their actual interest is greatest …. On the contrary, sometimes the conceptions, even though never analyzed and completely understood, obsess the minds of the men who act upon them.  Sometimes indeed, they are but instinctive assumptions of which at the time few or none were aware….

It is not the least of the achievements of the common law that it endowed the Parliament which was evolved under it with an unrestricted power of altering the law….

‘The changes which have taken place in our Constitution’, Hearn says, ‘are the results of the natural process of evolution.’….

But a curious and surprising departure from, indeed violation of, English constitutional practice and theory is the adoption of the separation of powers…. This artificial and almost impractical classification was opposed to British practice and theory……The failure of the doctrine of the separation of powers of government to achieve full legal operation here is probably fortunate.  Its failure to do so may be ascribed perhaps to mere judicial incredulity…. Legal symmetry gave way to common sense.  (1933)

We all accept without question the Anglo-American conception of the rule of law.  Deeply as it enters into our habits of thought about the relations of the individual to the State, we seldom reflect that this conception is foreign to the Roman system.  It is a conception that belongs only to the common law, by which it has been preserved and transmitted….

….. our constitution refused to adopt any part of the Bill of Rights of 1791…. It may surprise you to learn that in Australia, one view held was that these checks on legislative inaction were undemocratic, because to adopt them argued a want of confidence in the will of the people.  (1942)

But a people’s conceptions, theories, and even institutions of government, rest much more on long tradition than on logic; on usage and tacit assumptions than on conscious improvisations and analytical paper projections….

We, under our conception of democracy, so far from separating the executive and the legislature, insist on the dependence of the Cabinet upon Parliament…. [In the U S] …the legislature has no responsibility for the supervision of the executive.  In theory, both their powers and their paths are parallel and do not intersect….

Perhaps the truth is that the necessity of a strong executive was taken for granted; the example in mind was the eighteenth century monarchy before the Cabinet system was developed.  It is not fanciful to treat the Presidency as the counterpart of the monarchy of the eighteenth century…. In Great Britain we developed the Cabinet and parliamentary system partly as a means to check the abuse of absolute executive power. (1944)

(These citations may be found in the relevant speeches recorded in Jesting Pilate, Law Book Co, 1965.)

Well, I need not apologise for the length of those citations.  Dixon flew at a very different altitude from the rest of us, but those remarks set out clearly and with authority the massive differences between England and Europe and between us and the U S. 

They also show why we now see the U S as a fallen polity.  And the government of England in the eighteenth century was run on what they called patronage, and we call corruption.

Those brought up in the common law can readily see the difference between a system based on tacit assumptions and long experience rather than high theory and rock-solid imperatives.  And if you see the rule of law as imperative to any nation that regards itself as civilised, then the difference between us and those who model themselves on the Roman Law is very great indeed.

But there are two problems with relying on convention and tacit assumptions.  People feel insecure when left in doubt.  They crave certainty.   This is what Keats saw when discussing ‘Negative Capability’ in Shakespeare. They want everything in black and white.

And it is easier for charlatans and mountebanks – the ‘populists’ – to cheat by flouting convention and refusing to play by the rules of the game.  And they do so by feeding the jealous chooks with nauseating claptrap about ‘experts’ or ‘elites’.  When did you hear of a patient being admitted to Emergency with a serious heart condition saying ‘And I don’t want an expert or elite surgeon to operate – a GP will be just fine.’

This all looks to be a risk inherent in the process of what we call democracy – that ‘the people’ produce a result that objectively considered is not one that will advance the interests of the polity as a whole.  Elections may be like law suits – they involve a contest where somebody wins and somebody loses.  Napoleon, we are told, adhered to the maxim that to divide the interest of a nation is to injure all.

‘Confidence in the will of the people’ is not a phrase you would expect to hear from Sir Owen Dixon.  Would whatever faith his Honour had in ‘the people’ have survived when so many live off TikTok and never look at a newspaper, much less the documents and books that underlie what we that are left call civilization? 

Social media has dulled brains and dented what was left of courtesy.  Even the ‘Comments’ in the Financial Times are staggeringly rude and inane.  Those profiting from this part of our scene do so by promoting conflict, as does the notorious Sky After Dark (Australia).  And in the year of our lord 2026, government is left in a quandary about protecting people from themselves. 

A congeries of billionaires with no moral judgment have given new meaning to the terms oligarchy and plutocracy.  They profit from promoting hate speech. And destroying our communal life.  They are, in the old language, enemies of the state.  Social media is the first refuge of the coward.  (As I write this, we in Australia are struggling to get over a vicious attack on an MP.  Her visibly shaken colleagues say that the temperature of online chatter – like death threats – keeps going up.)

There is one other problem with the two-party system.  People have lost interest or faith in what the major parties stand for.  But there is also concern about the intervention of party politics in some areas.  Matters of national security should not be the subject of partisan party politics.  Nor in my opinion should dealing with the future of the planet, or the history of the dealings between First Nations and white settlers.

Historically, the first object of the law was to preserve the peace.  Now that first object should be to preserve the ground that we live on for the benefit of those who will come after us.  That can be done by government considering the advice of experts and acting accordingly. 

The second issue is a moral one for the nation as a whole.  What is the best way for white settlers to deal with those whose land we took from the original owners? 

Now, opinions may of course differ on these issues, yet somehow, we have let both those issues descend to the infighting of party politics.  And some give full weight to the maxim of John Milton that ‘fear of change perplexes monarchs’ – the monarch now being the people.  The results are both predictable and sad, and in my view our nation on each count stands diminished.

Well, these issues seem to me to be the main problems our system of democracy faces.  I have it in mind that Plato foresaw at least some of it in The Republic, but I regard that work as a blueprint for those regimes we least admire – like Sparta.  (Socrates did not mind an each way bet.  In Book 8, he said that the citizens chafed at the least authority, and then that the drones fed upon the wealthy class, propositions that would be well received in the salons of The Telegraph.)

Perhaps there is nothing new here.  Spinoza knew as much about us as anyone.  His Tractatus was published after his death in 1677.  It began:

Men would never be superstitious if they could govern all their circumstances by set rules or if they were always favoured by fortune; but being frequently driven into straits where rules are useless and being often kept fluctuating pitiably between hope and fear by the uncertainty…. they are very prone to credulity…In adversity, they know not which way to turn, but beg and pray for counsel from every passer-by.  No plan is then too futile, too absurd, or too fatuous for their adoption…. superstition’s chief victims are those who greedily covert temporal advantages…. Superstition then is engendered, preserved and fostered by fear.

How stands it then with us?  The disenchantment with the major parties is general, as is the fear and distaste for the populists on the fringe.  The most polite epithets I could apply to our governance would be mediocrity and timidity.  Our inability to deal with the moral issue of gaming is a national failure brought on by fiscal greed and a lack of nerve.  And I see little basis to hope that our decline may be reversed.  Instead we look like the anguished Danish prince when he thought that all occasions did inform against him. 

Now, you have every mind to say that I am just a grumpy old man.  But, as friend of my age truly remarked, we have a bit to be grumpy about.

And there two things that I do know.  You cannot have your cake and eat it.  And any aristocrat dismissing the poor by saying ‘Let them eat cake’ would be courting the most brutal revenge. 

It does seem to me that a surging resentment of inequality of income and wealth is manifest in most of the problems that we face in our democracies.  And no one would want to see anything remotely resembling the events of 1789, 1848, 1917, 1933,  or 1968, when on each occasion humanity descended into the inferno, and Carlyle was driven to say that revolution is the madness that dwells in the hearts of men.

The book Regime Change was so alarming, I found myself skim reading it in order to stay composed.  I have just had a similar experience with The Cauldron, The Making of the Modern Middle East by Simon Sebag Montefiore.  It is brilliantly constructed, but it just goes from one act of perfidy or bastardry or savagery to another.  It is hard to find one character of substance or one place where an Australian could feel comfortable to live in.  It looks to be in a different universe and one condemned to eternal war.

The problems may be said to have started with the greedy, perfidious, and inept imperialism of the major European powers, but the horror shows start with tribal wars that become mixed with religious wars – and worse, schisms in religion. 

We tend to think that the basis of our civilization is the rule of law.  I have now come to the view that of equal if not greater importance is what we call the separation of church and state.  We may not be able to control God, but we must be able to contain his priests.  And almost all of the most poisonous doctrine and related political and geographic claims come from men.

The author has done a great job in organizing all this material.  And he has a turn of phrase.  He refers to Lawrence as a ‘Crusader scholar, skilled guerilla fighter and elegant writer…. a slick fixer, a Byronic fabulist and brazen self-promoter’   and a ‘subtle pixie’ … who looked upon a Feisal with ‘patronising hauteur and imperialist relish.’

The book suggests that the main protagonists about the Holy Land are bent on destruction of each other.

In Muslim societies, Islam remains indivisible from politics.

That may be the most important proposition in the book.  How do others – such as Israel – stack up?

The choice is between the vision represented by Teheran and that of the Gulf States: a liberal Islam allied with the West versus a radical Islam in confrontation with the West.  The Ayatollahs loathe the Gulf Arab Monarchies…almost more than they hated America and Israel, because they were the successful model of an alternative way of life.  [Compare Russia and Ukraine.]  Mojtaba Khamenei now calls his version ‘The New Islamic Civilization’ – and this radical Islamism is indeed new, but also repressive and ruinous, his program one of violence and misgovernance that has helped to destroy Syria, Lebanon, Gaza, and his own country, killing hundreds of thousands, Arab and Iranian.

How does the author sum up the other side?

Israel is even more contradictory, both swaggering and insecure, over-reaching and under-prepared, secular liberal and militaristic messianic, spectacular in tactics, impoverished in strategy.  However superior its military, its way of war has become bombastic and bloody…. Whoever leads it, Israel has no choice but to defend itself against Iran, its belligerent satraps and their destructive mission. For all its power, eclecticism and ingenuity, it is possible the Judaic republic could be wrecked by an Intra-Jewish civil war, perhaps triggered by its religious-fascist politicians and overmighty paramilitaries that deliberately aim to isolate the state by launching regular pogroms against Palestinian civilians in a campaign to achieve Jewish supremacy in the West Bank.

Later:

There is no beast in the jungle so dangerous as a lame, hulking tiger: Iran….

The Gulf vision of Muslim society that is directed but tolerant and prosperous is a vibrant rebuke to Iranian ayatollahs, Hezbollah and Hamas gunmen who only offer killing and poverty tempered by the promise of paradise.

Strong stuff.  But as best as I can see, it is a fair go at describing the various shades of Hell on Earth in that part of the world, and it shows that it looks nigh on impossible for peace to settle on the Holy land – ever.

And it leaves those without God to wonder what God has done for humanity in all this tribal loathing and schismatic contempt that knows nothing of the Enlightenment. 

Most of us here in Australia have little understanding of this alien inhumanity, but we will be exposed to the cancer brought to our shores by members or supporters of the warring faiths or tribes.